Three strikes and you’re out. Sounds like a law Washington State passed awhile back for repeat felony offenders. Well, that’s what the entertainment industry has conned/threatened/demanded/bribed out of ISPs for piracy repeat offenders.

Here’s the dirt, wait this is so nasty that I would be giving offense to dirt with that comment. Let me rephrase; Here is the toxic sludge:

If your ISP doesn’t like what you are downloading online they will take action in a number of ways including:

Throttling subscriber bandwidth speeds

Limiting subscriber access to websites (eg, restricting access to the top 200 sites until the contested behavior stops)

Requiring the subscriber to participate in an educational program on copyright

Terminating Internet access is not being considered, the report says. The cost of this agreement will be shared by the ISPs and content providers.

I must once again state for the record that this is BACKWARD thinking which in the past has had disastrous consequences for both the entertainment industry and ordinary people. Let’s take a look back at the ridiculous actions against individuals and businesses by the entertainment industry.

The Big Bad Entertainment Industry vs. the Everyday Dude: A ridiculous but true history

In October 1998, the Recording Industry Association of America filed a lawsuit in the Ninth U.S. Court of Appeals in San Francisco claiming the Diamond Multimedia Rio PMP300 player violated the 1992 Audio Home Recording Act. The Rio PMP300 was significant because it was the second portable consumer MP3 digital audio player released on the market. The three judge panel ruled in favor of Diamond, paving the way for the development of the portable digital player market.

Recording Industry Association of America (RIAA) sued Gertrude Walton, who had passed away the year before at the age of 83, after having received notice of her death and a copy of the death certificate. The RIAA claimed that Watson had illegally downloaded and shared over 700 songs. Watson’s daughter claims that she never even had a computer in the house. Although RIAA dropped the case against Watson, it was only one of over 20,000 similar lawsuits filed by the association beginning in 2003. While some of the lawsuits are legitimate cases of piracy, defendants have included a twelve-year-old girl whose parents wound up paying RIAA $2,000, and families who have never owned a computer. Defendants can face charges of $150,000 per song.

Seven different recording labels banded together to bring the fight against a man named Larry Scantlebury. Larry was a vietnam veteran who loved reading books in his spare time, along with spending time with his wife and spoiling his three grandchildren. The RIAA was suing Larry for allegedly stealing their content, as usual, when during the long drawn-out process, he died. Where normally this kind of incident would lead to candle-light vigils, and scandal about a man dying while being sued by the RIAA, this only got more vile. Immediately upon hearing that the accused had passed away, Warner’s lawyers told his surviving family members that they had 60 days to grieve before their depositions were expected, and at that time the RIAA would consider amending the charges before moving on with the case, against them.

The MPAA sued a Wisconsin Grandfather named Fred Lawrence for illegally downloading four movies via peer-to-peer sharing. True to form, they contacted him demanding $4,000 with the threat that if they didn’t get paid, he’d be facing a lawsuit; when Mr. Lawrence flatly refused to pay them he found himself facing a potential $600,000 in damages. As it turns out, his 12-year-old grandson had downloaded the movies for no particular reason, since they already owned three of the four offending titles. This entire episode was especially stressful to Mr. Lawrence, as legal experts explained to him that even if he fight and won against the MPAA, the association would be fully within their rights to sue his grandson afterwards.

Mrs. Ward was a 66-year-old retired schoolteacher who sculpted in her spare time, and suffered from mild dyslexia. She rarely used the computer for anything more than checking her e-mail, or the weather, and enjoyed listening to celtic or folk music. The RIAA sent her notice in late 2003 that she was being sued for illegally downloading and trafficking several million dollars worth of music using the peer-to-peer file-sharing program and network KaZaA. Specifically cited in the charges was her extreme pirating of artist Snoop Dogg. Also interesting to note is that KaZaA was strictly a Microsoft Windows application at the time, and Mrs. Ward’s old Apple machine would not have been running it.

42-year-old single mother Tanya Anderson was informed by the RIAA in 2004 that she could either settle out of court or face legal action for her early morning piracy antics. She learned that she had apparently been downloading the rap song “Shake that Ass, Bitch” at 4:24 in the morning under the username “gotenkito.” This was news to her, and she promptly counter-sued the RIAA under state Racketeering laws. At the time, she worked for the Department of Justice, but was forced to leave for health reasons shortly after her legal woes began. She was severely disabled, and with the loss of her job added to the already soaring legal fees she was in for hard times. To put a nice cap on it all, the RIAA not only called her 10-year-old daughter’s school impersonating the girl’s grandmother in an attempt to get information from her, but they also threatened to “interrogate and confront her little girl at the offices of the RIAA lawyers” if Ms. Anderson did not drop her counter-claim, which she disclosed in her deposition against them.

In 2006 a grandmother of three, Lola Scruse, who was also 66 years old, and on dialysis. She lived off of Social Security checks, and she didn’t know much of anything about computers or the internet other than the fact that she owned one and paid for the other. Her grandchildren would use her computer when they were over to visit. Lola was informed by the Court that she owed $6,000 for 872 songs that she had downloaded illegally, and that she had already lost the case due to default judgement since she never responded to the initial lawsuit. She was already handling monstrous medical bills for the dialysis, and now with this figure added, she was quite upset. Lola’s since been more mindful of what her grandchildren are doing on her computer, and the RIAA has since targeted more grandmothers who don’t respond to strange court documents about things they don’t understand.

Chaz Berry fell on hard times, and became one of New York City’s thousands of homeless people. He was going about his business in early 2007, presumably just being homeless, when he found out that he was being sued by the RIAA for copyright infringement. Apparently, the Industry lawyers had found that they couldn’t locate Mr. Berry, and were aware that he was in fact homeless. That didn’t stop the process server from adhering the summons to the door of his former apartment. They reported to the Court that they had “made every effort” to locate Mr. Berry, and requested default judgement in the case. After much legal ado, the case was dropped against Mr. Berry, and the RIAA barely escaped the courtroom without sanctions on their legal team.

In 2007 the RIAA took a case all the way to a jury in Federal Court, suing Jammie Thomas on 24 counts of illegal file-sharing. This was the first case to go all the way to court, as every other had either been settled or was tied up in litigation and negotiating settlement. Being the first, it was extremely important to both sides of the issue, which at the time was red-hot in all media venues. At the time of the trial, well over 20,000 other suits were active, and the RIAA had a point to prove. In the end, the jury found Thomas guilty on all 24 counts, and set an award to the plaintiff of $222,000, despite the testimony of expert witnesses that proved a degree of reasonable doubt.

In 2006 Ms. Crain, a grandmother who had been displaced by Hurricane Katrina to East Texas, was told by the RIAA that she had the option to pay them the pittance of $4,500 or see them in court. They explained to her that they knew all about her KaZaA account name “kcrain” and that her sharing of tracks by the likes of Usher and 50 Cent, totalling 572 songs, were well documented. Ms. Crain ended up settling in court with the RIAA under stipulations that she delete the offending files, and she did not have to pay them any damages. The judge in this case had decided that simply paying for internet access that someone else uses to download files does not make a person entirely liable for those downloads. It’s too bad Mrs. Scruse didn’t have that judge.

At just 12 years old, Brianna LaHara was forced into settlement with the RIAA and had to pay $2,000 in damages for illegally sharing music. The breakdown was roughly two dollars per song. Out of 261 defendants in the first round of mass-suits, Brianna was the first to settle. At the time, the association had stated that it was only going after offenders who had been shown to have shared more than 1,000 songs illegally, and that anyone who stepped forward before a suit was filed against them would be given amnesty, though only for tracks officially represented by the RIAA. Not many people actually took the chance, since it would have only opened them up to secondary suits from interest groups working in tandem with the RIAA. This also came at the same time that the association was targeting universities and the students who used their networks to acquire music through them.

In 2007 a man named Joel Tenenbaum decided not to settle and took his case all the way to court when he was sued by the RIAA. He began the adventure defending himself, but as time wore on, the RIAA lawyers delayed as much as possible, stalling whenever the opportunity presented itself. When the delays and court actions got too thick for him to handle without help, a Harvard Law professor named Charles Nesson stepped in to carry the mantle. The team then proceeded to not only stand their ground, but to attack the RIAA in both open court and open media. Not stopping their, Tenenbaum and Nesson called on the Court itself, declaring that allowing the RIAA to sue for such large amounts was unconstitutional, and violates Due Process. To truly make their point sink in, and gain massive attention Nesson brought to the foreground the fact that the RIAA itself used the very same argument in its own defense in a previous round of suits in which it was accused of the unauthorized use of music samples.

Of all the sites on the internet dealing with peer-to-peer sharing, The Pirate Bay is widely known as the largest and most established. Based in Sweden, TPB has operated with near-impunity to American copyright laws, at least until recently. The MPAA tried repeatedly, at one point on a weekly basis, along with its sister association the RIAA, as well as several other special-interest groups and even Microsoft itself, to frighten the operators of the site to shut down by threatening legal action. In 2006 the MPAA released a public memorandum exalting in their success and stating that TPB had been shut down, and commending the U.S. and Swedish authorities for doing such a wonderful job in “the raid”. There was a raid, and there were technically arrests, and seizures, but TPB was only shut down for 3 days and largely unaffected by the loss of equipment. The MPAA’s press-release actually backfired, and became a more effective marketing tool for the Swedish Pirate Bay here in the U.S. than anything they could have done themselves. It read like an advertisement, showcasing what is available, for free, if one were to visit TPB. The full release could at one time be read here, but has since been removed. When the site came back online, it had an even larger following than it had before the raid. In 2009, after amendments to Swedish laws, the Pirate Bay founders were put on trial for breaking Swedish copyright laws; this was the first time they could be prosecuted by anyone. In the end, all four founders of the site were convicted on less than half the original charges, and sentenced to one year in prison and required to pay large award sums to the groups behind the suit. Under Swedish laws, however, no sentence is legal until all appeals are carried out in full, meaning The Pirate Bay’s founders are unaffected by the outcome and will remain so for several more years to come.

In 2008, during the feverish litigation-fest the U.S. Government was hosting for the MPAA lawyers, Hollywood reacted violently to a new piece of software released by Real Networks, called RealDVD. The software was simple, it basically broke the Industry’s DRM (Digital Rights Management) on DVD’s so that consumers could copy the DVD or save it to their computer for posterity. The MPAA began using the Digital Millenium Copyright Act, or the DMCA as it’s more commonly known, to sue every entity that has come in contact with this DRM-bypassing software. The drama became even more spectacular when Real Networks turned the tables and counter-sued the MPAA, and demanded the court rule that their software be legitimized under a previously-established set of laws governing software and technology for the consumer. Technically, at that point, both sides had laws to substantiate their own claims, and the entire ordeal became a media fiasco dubbed “Dumb and Dumber” in the headlines. Recently, the MPAA has accused Real Networks of destroying evidence that showed the source of their code, which they claim to be “hackers.”

When the MPAA attempted to get a piece of the action by suing Shawn Hogan for illegally sharing Meet the Fockers in 2006, the case received a lot of media attention. This was partially because of the fact that Shawn never shared the movie, nor did he download it to begin with. He also owned the movie on DVD, but this wasn’t what had made headlines; Shawn’s ire for justice at being slandered in such a way drove him to hire a legal team to prove that the MPAA was wrong, and in their research they discovered that the Industry never actually owned the copyright to the movie in the first place due to clerical errors at the time of the filing. The case was quickly dismissed.

The lawsuits that the RIAA and MPAA continued to summon against the everyday person were a huge waste of court time and resources. There are much more important matters to be settled and the entertainment industry is wasting our time by thinking backwards. Now, fast forward about 20 years later and we’re still hearing that the entertainment industry is finding ways to limit our access or stop us from downloading. Instead of thinking ahead they are still trying to stop the individual from enjoying access to everything in the world.

Oh yes, for those of you who wish to contest my knowledge of the industry: I was in a band that recorded with Michael Barbiero in NYC, toured the USA, and had a video on rotation MTV2 & MTV3. As artists we never saw a DIME from any of our ventures. The label kept all of the money and screwed us over eventually leading to the disbandment of the group. I have personally witnessed how the industry works as a middleman raping both sides for complete profit and world domination of media which ultimately is our portal into the world. Do you really want one company controlling your eyes and ears in the world? This is where we are headed if we don’t stand up and demand change.

Make it easier and more reasonably affordable for us to pay for a product and we are less likely to illegally download it. That’s the message I am sending to the entertainment industry. Plain and simple. Stop suing, stop trying to police the internet, and stay out of our lives. You will end up alienating everyone and driving away the very people who keep you in business. If your business model isn’t working in the digital age than change your model. Don’t blame us because you failed. Grow up and take responsibility.

About Jonathan G. Nelson

Jonathan G. Nelson is the editor-in-chief and owner of NERD TREK. He is also owner/publisher at AAW Games / AdventureAWeek.com, a tabletop gaming company based in Snoqualmie, WA.
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